Arnold Ray Lamotte, Jr. v. Mark Stoneberger and James Commins ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-424 CV ____________________

ARNOLD RAY LAMOTTE, JR., Appellant

V.

MARK STONEBERGER AND JAMES COMMINS, Appellees

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On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV 21,547

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MEMORANDUM OPINION ⁽¹⁾  

Arnold Ray Lamotte, Jr., appealed a judgment signed on July 28, 2004. As the notice of appeal was filed on September 24, 2004, fifty-eight days after the judgment date, we questioned our jurisdiction over the appeal. In response to our inquiry, Lamotte contends he mailed the notice of appeal on August 25, 2004, and asserts that the notice of appeal was, therefore, timely filed under Rule 9.2(b). See Tex. R. App. P. 9.2(b). To be considered timely filed, a mailed document must be received within ten days after the filing deadline. Id. In this case, the notice of appeal was received twenty-eight days after the filing deadline. Therefore, the document was not timely filed under Rule 9.2(b).

Lamotte complains that he has no control over the prison mail facility, and contends that a document attached to his response demonstrates that he submitted the document to the Indigent Mail Department on August 26, 2004, and claims that a copy of the logbook verifies his claim. The "copy" is not a photocopy, but is handwritten. ⁽²⁾ The exhibit to which he refers states: "The document you refer to was verified by mailroom supervisor; who stated a legal document of CIV21,495 case number, was log outgoing in mailroom logbook, on October 27, 2004 from Indigent Mail send out, the contents in it is unknown." Assuming the document is an accurate depiction of what the appellant claims it to be, supporting documentation for having submitted mail on October 27 provides no evidentiary support for meeting an August 25 deadline.

There is precedent in federal jurisprudence for allowing a notice of appeal to be deemed filed on the date it is delivered to prison authorities. Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385, 101 L. Ed. 2d 245 (1988). The Texas courts directly addressing the issue have rejected that approach. See Wright v. Texas Dept. of Criminal Justice-Institutional Div., 137 S.W.3d 693, 696 (Tex. App.--Houston [1st Dist.] 2004, pet. denied); Kinnard v. Carnahan, 25 S.W.3d 266, 268-69 (Tex. App.--San Antonio 2000, no pet.). In this case, we need not decide whether to apply the rule in Houston v. Lack or to follow Wright and Kinnard, because the appellant failed to establish that he delivered the notice of appeal to the prison mail system on or before the deadline for filing notice of appeal.

The appellant failed to establish that he filed notice of appeal within the time permitted for perfecting appeal. See Tex. R. App. P. 26.1. The appellant failed to file notice of appeal within the time for which we may grant an extension of time to file notice of appeal. See Tex. R. App. P. 26.3. The Court finds it lacks jurisdiction over this appeal. Accordingly, the appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

   PER CURIAM

Opinion Delivered March 3, 2005

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Tex. R. App. P. 47.4.

2. The appellant suggests the mailroom employees may have intentionally held his mail, but he does not explain why he did not provide official documentation of his outgoing mail.